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The right to a view : common law, legislation and the constitution

Koch, Carolina Augusta (2012-12)

Thesis (LLD)--Stellenbosch University, 2012.

Includes bibliography

Thesis

ENGLISH ABSTRACT: South African law does not recognise an inherent right to the existing, unobstructed view from a property. Nevertheless, seemingly in disregard of this general principle, property owners often attempt to protect such views and courts sometimes in fact grant orders that provide such protection. This dissertation aims to establish whether South African law does indeed not acknowledge a right to a view and whether there are any exceptions to the general rule against the recognition of the right to a view. The principle that the existing view from a property is not an inherent property right is rooted in Roman and Roman-Dutch law. This principle was received in early South African case law. Inconsistency in the application of the principle in recent case law renders its development uncertain. An analysis of recent decisions shows that the view from a property is sometimes protected in terms of servitudes or similar devices, or by virtue of legislation. In other instances, property owners attempt to prevent the erection of a neighbouring building that will interfere with their existing views, based either on a substantive right or an administrative shortcoming. When the protection of view is based on a limited real right (servitudes or similar devices) or legislation, it is generally effective and permanent. Conversely, when it is founded on a substantive right to prevent building on neighbouring land or an administrative irregularity rendering a neighbouring building objectionable, the protection is indirect and temporary.
A comparative study confirms that the position regarding the protection of view is similar in English and Dutch law. Constitutional analysis in terms of the methodology developed by the Constitutional Court in FNB indicates that cases where view is protected are not in conflict with section 25(1) of the Constitution of the Republic of South Africa, 1996. The investigation concludes with an evaluation of policy considerations which show that the position with regard to a right to a view in South African law is rooted in legitimate policy rationales.